Jan 072015

Rainer Forst, The Right to Justification: Elements of a Constructivist Theory of Justice, trans. Jeffrey Flynn. New York: Columbia University Press, 2012; 351 pages. ISBN: 978-0-231-14708-8.

Review by Michael Maidan

The Right to Justification contains twelve essays by Rainer Forst, a social philosopher in the tradition of Jürgen Habermas and the Frankfurt School, who refines and sharpens the positions presented in his early Contexts of Justice (2002, originally published in German in 1994). While several of the essays that comprise The Right to Justification have already been published in English, here they are organized in a systematic rather than a chronological order, which makes the whole a self-standing work.

The book is divided into three parts: “Foundations,” “Political and Social Justice,” and “Human Rights and Transnational Justice.” “Foundations” takes us from an exposé of Forst’s main ideas to a post-Kantian discussion of autonomy, to a review of the difference between ethics and morality and, finally, to an examination and critical assessment of the debate between Rawls and Habermas. This chapter, Chapter 4, is one of the earliest among the previously published texts now published in Right to Justification. Parts Two and Three can be considered applications to specific moral issues of the insights gained in the first part. Part Two deals with moral and political issues (political liberty and autonomy, multicultural toleration, democracy and social justice), while Part Three deals with the justification of human rights and moral duties beyond the sphere of the national state (human rights, transnational justice).

In the “Introduction,” specially written for this volume, Forst presents in some detail the notion of justification. According to Forst, human practices are bound up with justifications, i.e., we would not be surprised to be asked for reasons for our practices, and we would expect that others would volunteer them when asked to do so. From this elementary and almost anthropological determination (here he refers us to the traditional definitions of a human as both a rational and a social being) we pass to the definition of a political social context, one in which human beings find themselves in an “order of justification” consisting of norms and institutions that govern their lives together in a justifiable way.

The most important normative concept in this order of justification is justice, which has to do with demands about having or lacking certain rights, and more importantly, demands about how it is determined who has a claim on what and how participants in this order of justification stand in relation to one another. The basic form of justice is the rejection of arbitrariness, the dismissal of any rule that lacks legitimate grounds. Arbitrariness can mean, explains Forst, either arbitrary rule by one individual, of one part of the community over another, the existence of structures than conceal and reproduce privilege, or social contingencies that are accepted as fate. Therefore, the impulse that runs counter to injustice is not merely a claim to a larger share of the goods and riches of society, but primarily a claim not to have one’s claims to justification ignored.

Forst’s main thesis is “that we should understand political and social justice on the basis of a single right—the right to justification.” (2; my emphasis) This interpretation of justice—already presented in general lines in Contexts of Justice—stands opposed to a “conventional picture” that emphasizes what is due to individuals in terms of distribution of goods, an approach that avoids the questions of production and its organization. (4) Not only distribution but also production needs to be made accessible to questions of justification. On this last point Forst seems to stand opposed to Habermas, who from early on in his work separated production from interaction. Forst also criticizes the claim that a discourse theory of political and social justice can only be procedural, i.e., can establish procedures and rules, but no substantive content. The discourse theory that Forst is defending does not rest on neutral foundations, but on the “moral principle of justification.” Furthermore, in Chapter 9, Forst constructs on the basis of this theory a substantive theory of human rights.

Forst considers his theory of justice as autonomous; one it does not requires any foundation besides the principle of justification and the concrete practices of the autonomous subjects. He also considers his theory a pluralist one, as he acknowledges the existence of other virtues and values while at the same time keeping justice separate—but not superior—to these values as being the principle used to determine their legitimacy.

Chapter 4, which closes the first part of the book, discusses the justification of justice using as a starting point the 1995 debate between Rawls and Habermas. Due to the importance of this debate for the development of the current outlook of the Frankfurt School and of Forst in particular, this chapter is a good candidate as a stand in for the whole. Here, Forst aims to survey the common grounds and differences between the moral and political theories of Rawls and Habermas and “to offer a theoretical alternative that goes beyond them,” one which is context-sensitive and critical. (79) He begins by pointing out the similarities between the theories, their common Kantian heritage, and their rejection of a metaphysical foundation. Both Habermas and Rawls address what Forst denominates as the “basic structure of society,” not in terms of values, but as a principle of justification, i.e., the principle that every institution that claims to rest on generally valid principles must prove its validity generally and reciprocally in the discourse between the citizens themselves. Principles and norms can be said to be valid only when they are agreed reciprocally (without demanding from others more than what one is willing to concede) and generally (without excluding anybody concerned, their needs and interests). This approach makes it possible not only to speak of formally valid principles but also to distinguish between more and less justifiable arguments. In both theories public justification is the touchstone of normativity.

According to Forst, the later work of Rawls moves from the Kantian approach in Theory of Justice to a more “nonmetaphysical” form of foundation, one that avoids relying on a comprehensive moral theory. Instead, Rawls tries to base his theory on uncontroversial, and therefore more indisputable, basic ideas. In Political Liberalism, Rawls claims that there is no need to understand the principle of justice in the sense of a “constitutive autonomy,” as a “doctrinal autonomy” based only on political ideas is sufficient. (83) The similarly Kantian inspired approach elaborated by Habermas is presented as “postmetaphysical,” a form of thought that relies only on a procedural concept of reason (91), but is still based on a variety “of theoretical considerations about language, morality and knowledge, as well as sociological and historical considerations.” (87) Habermas also makes a sharp distinction between ethical claims, which in principle are grounded in a particular understanding of the good life, and moral claims of justice, which must be reciprocally, and generally justifiable and neither requires nor exclude in principle such ethical considerations. This is studied in greater detail in Chapter 3.

Forst considers the way Habermas draws the boundary between the moral/justice domain and the ethical and judgments related to the pursuit of a good life as too strong. Instead, he prefers to speak —as he did already in his earlier Contexts of Justice—of different “contexts of justifications of values.” Forst offers a third position, one that stands between Rawls and Habermas:

both models should be combined into a third one: morally reflecting citizens must be ready and able to engage in a common justification of the principles of justice, which they accept based on shared reason and which has priority in questions of justice (and only there) over their other beliefs. (99, emphasis added)

In the last section, Forst analyzes a few objections to his position. First, he dismisses the idea that the justification theory of justice is merely another procedural theory, which disregards the contextual and situated nature of the persons involved. Forst counters that his theory of justice has a moral foundation, but this does not overlap with the whole of morality, or with the entire normative context in which individuals have bonds and obligations. (117) This theory does not deny the role of conceptions of the good but relegates it to “a hypothetical explanatory character.” (117) Borrowing an expression from Rawls, Forst writes that while the good represents the “point” of justice, no theory of the good can determine the point; only the subjects themselves in procedures of reciprocal and general justification can. (117–118)  Forst offers two reasons for this claim. First, there is the danger of paternalism, of a big Other that will become the interpreter and prophet of the Good. Second, no formal theory of the good can cope with “the plurality of ethical ways of life” in a modern society. Forst also downplays Axel Honneth’s linkage of recognition and justice (118), although he re-introduces a form of recognition as part of a “capacity for practical reason.” (120)

The theory of justification that Forst proposes makes a difference between fundamental and maximal justice. Fundamental justice deals with the construction of a basic structure of justification, rights, institutions, and access to specific information and capabilities. It is not a minimalist concept of justice, and it is not totally formal. Maximal justice is even more substantive, as it deals with the distribution of social goods. This emphasis and the comment indicating the existence of subjective resources and virtues that correspond to Justice (fairness, tolerance, willingness to enter into a dialogue, solidarity, etc.) are intended to show that Forst’s deontological theory of justice is far from being merely formal and procedural.  It is “more than the agreement concerning a few ‘procedural’ rules, but less than the sharing of a form of life that constitutes the ethical identity of citizens.” (121)

In the “Preface,” Forst describes his position as Platonic, one that stresses that there is a reasonable justification for a conception of justice, and that this justification goes back to a “single” root, which is, as already noted, the “right to justification.” (vii) Forst recognizes that in an age that prefers philosophical pluralism his position is a risky one. Indeed, his position could be challenged not only by those skeptical of the emancipatory virtues of discourse, but also by those who believing in the virtues of discourse still find themselves having to preempt the possibility of a counterexample that can not be decided on the basis of a single principle. Forst’s position does not seem to make allowances for a “tragic conflict” where two sides may refer to principles of justification that are equally tenable though irreconcilably opposed. This is the kind of conflict best resolved by a quid pro quo, where the appeal to principles of justification will be self-defeating.